Friday, May 25, 2007

Hate crimes, not thought crimes

-- by Dave

Dover Bitch noticed that during Wednesday's testimony on Capitol Hill by former Justice Department aide Monica Goodling, Democratic Rep. Stephen Cohen of Tennessee trod upon some delicate soil by asking some penetrating questions about Goodling's background as a Regent University graduate.

That in turn sparked the following bizarre response from Republican Rep. Louie Gohmert of Texas, who seemed to be charging that any such line of questioning amounted to anti-Christian hate speech:

And I would also submit to my colleagues that the hate crime bill passed out of this committee and taken to the floor and passed recently leaves an opening. If someone here seems to indicate there's something wrong about being a Christian and someone is induced to commit violence against that Christian, then the person on this committee could possibly be charged under the hate crime bill as the principle for having committed the act of violence.

And I would just encourage my colleagues to consider well your comments and your votes in this committee. I yield back.

This is, of course, utter blithering nonsense. It is only when speech is specifically criminal -- that is, when it urges people to commit a specific criminal act that is then committed by those addressed -- that any hate-crimes bill could come into play. There is no provision in the House's hate-crimes bill that would penalize anyone for voicing ordinary, non-criminal, constitutionally protected speech, which Rep. Cohen's speech clearly would constitute. Indeed, even most outright hate speech is protected speech and would not come into play under this law. The last clause of the bill specifically states:

Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution.

What Gohmert and his fellow conservatives want the public to think, of course, is that the hate-crimes bill in fact would criminalize speech -- specifically, the right of pastors and devout religionists to spout off about homosexuality.

This is, in fact, a bald falsehood, one that should be publicly countered and repudiated. As it is, it has now been entered into the congressional record and will doubtlessly be trotted out later as evidence of hypocrisy on the part of supporters of the hate-crimes legislation, which is currently en route to approval by the Senate after its long-overdue passage in the House.

The chief goal of the opponents of the bill -- chiefly the denizens of the religious right, who have enjoyed considerable success blocking passage of any federal bias-crime law for the past decade, particularly during congressional rule by Republicans -- lies in selling the idea that laws against hate crimes create "thought crimes." It's all part of a larger project of muddying the waters so that the public is confused about what actually is at stake with these laws.

Now, just to be clear -- "thought crimes" are typically defined as crimes in which the mere thought itself is criminalized (taken from Orwell's 1984, in which the protagonist is arrested for "thoughtcrimes"). But as I've explained previously:

Bias-crime laws no more create "thought crimes" than do any other laws consigning greater punishments for crimes committed under certain species of mens rea (or the mental state of the perpetrator), including anti-terrorism laws. Differences in intent and motive can make the difference between first-degree murder and manslaughter. Enhanced punishments are especially warranted when crimes are believed to cause greater harm -- and hate crimes quantifiably do so. These are standard features of criminal law, and no more create "thought crimes" than do laws providing the death penalty for first-degree murder.

Mens rea, it must be remembered, under the norms of jurisprudence, cannot be evidence of guilt in itself; rather, since it speaks to the issue of culpability, it is taken into consideration in sentencing. And so it is with hate-crime laws, which under most state statutes are in fact penalty-enhancement laws or sentencing expansions within existing criminal statutes.

Unfortunately, the basic falsity of the "hate crimes=thought crimes" meme has not prevented its broad success. You can hear it being offered as justification for opposing bias-crime laws by sources ranging from such religious-right entities as the Family Research Council and Focus on the Family (not to mention the predictable opposition raised by various white supremacists) to such civil libertarians as Andrew Sullivan.

The latter was particularly noteworthy, since it came in defense of Democratic Rep. Chris Carney's vote against the legislation. Carney's vote was indicative, I think, of the soft underbelly of progressives on the hate-crime issue, because too many of them have bought into the notion that these laws create thought crimes. It's also a reason why Bush's expected veto of the bill is likely to be sustained -- namely, because of the failure of Democrats to seize at as both the ethical and strategic opportunity that it in fact is; that weakness shows up in the final votes in Congress.

The most thorough response to this came also at Booman, from the estimable Steven D, whose long post is worth reading in its entirety, but who also notes:

A frequent argument that conservatives and other opponents of hate crimes laws make is that these laws punish someone for their thoughts. This is simply not true. They punish someone who has intentionally committed a crime with the motive to harm an individual or individuals who the defendant believes have or share a common characteristic such as race, ethnicity, gender, religious preference or sexual orientation. I've underlined the word "motive" above, because it is crucial to understand that under the law we often make distinctions on what crime to charge a defendant based upon his or her motive in committing that crime.

In other words, we consider a defendant's "perceived motivations" ( to use your phrase) all the time in determining the type of the crime with which to charge a defendant. For example, a man who shoots at a dog in his yard but kills a child in the house across the street because he is a poor shot may be tried for involuntary manslaughter, or criminally negligent homicide, rather than 1st degree murder because his intention was not to kill another human being, but to kill the dog. On the other hand, the same man who plans for weeks to murder his wife, and hires another person to commit the murder on his behalf, is generally charged with pre-medititated murder (i.e., "Murder in the 1st Degree"), even if he did not wield the gun or knife that killed her himself. Someone who commits murder in the first degree is generally subject to a more severe punishment than someone who committed involuntary manslaughter, even though in both cases someone has been killed, and we hold the killer liable for that death.

A defendant's intent matters a great deal in most criminal prosecutions. Indeed, to prove a hate crime, the prosecutor must not only prove intent to commit the crime, but also that the defendant's intent to commit that crime was specifically based upon a motive to harm people with a specific distinguishing characteristic. That's a much higher standard to meet than simply showing they intended to commit a violent crime.

In any event, motive is important in most crimes because we have made it a public policy that people who unintentionally act in ways which harm or injure others, or who do not understand that their actions could lead to such harm, generally should not be punished by the law to the same extent (if at all) as those who do intend to cause harm, should be.

Steven goes on to enumerate the various sound reasons for passing bias-crimes laws, including the point that, finally, they are a way for society to make clear its condemnation of such acts, recognizing them as more heinous than simple crimes because they cause greater harm. Indeed, pretending as opponents do that a cross burned on the lawn is the same as being egged and toilet-papered, or that a gay-bashing rampage by young thugs is the same thing as a bar fight, simply tries to pretend away the truly hateful and terroristic element of the former of these, as though it doesn't exist. But it does exist, and its effects poison our society and make a joke out of our self-belief in ourselves as an "equal opportunity" society.

This, in the end, is the single clearest reason why progressives should avidly support a federal hate-crimes law: These are crimes whose primary purpose is to disenfranchise, to expel, to deny the most basic rights of association and opportunity to millions of Americans of all stripes. Civil libertarians need to come to grips with the fact that these crimes are real, their effects are real, and they represent, in the words of Yale sociologist Donald Green, a real "massive dead-weight loss of freedom" for those millions of Americans.

Americans lose their freedoms not just through government oppression; an honest appraisal of our history forces us to recognize that there is a substantial track record of Americans losing their freedoms (up to and including their lives) through the actions of their fellow citizens: the genocide of Native Americans; the long reign of terror of the "lynching era" and associated "sundown towns" that infected the entire nation; the expulsion and incarceration of Asian Americans; the long-running campaign of vicious hatred directed against gays and lesbians.

Hate crimes are an integral part of that history, and laws intended to punish their perpetrators with stiffer sentences are an important blow for the cause of very real and substantial freedoms for millions of Americans. Trying to argue that, in some esoteric sense, they constitute "thought crimes" that somehow deprive us of our freedoms (to what? commit crimes?) turns this reality on its head.

Yet progressives haven't yet figured out that framing hate-crime laws as a defense of people's civil liberties is precisely the argument that will instantly deflate the long-running "thought crime" argument. In all the debate over the legislation, I haven't seen the point raised once.

Nor, for that matter, do they seem to have grasped that Bush's looming veto of the legislation -- which still awaits Senate passage -- provides an ample strategic opportunity. One of the principal causes of the public's fatigue with the conservative movement (beyond, of course, the Iraq debacle) is that it is being increasingly turned off by the right's rhetorical viciousness and seeming celebration of eliminationist violence.

Bush's veto of a bill intended to reduce violence against minorities should be seen as a prime example of this underlying ugliness -- as should some of the demonizing and factually false attacks on the laws themselves.

But ultimately, the chief reason for progressives to embrace and encourage a federal bias-crimes statute is a morally and ethically simple one: It's the right thing to do, not just for minority Americans but for all of us. That should be really be reason enough.

___

Note: Once again, I'm adding links to previous posts for deeper background on hate crimes, the laws against them, and the rationale for those laws.

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.